Common use of Restrictions on Transfer of Member Interest Clause in Contracts

Restrictions on Transfer of Member Interest. (a) No OP Member shall, during the Facility Lease Term, assign, convey or transfer any of its right, title or interest in the Member Interest or cause the Owner Participant to issue additional membership interests without the prior written consent of SEMA and, so long as the Lien of the Lease Indenture has not been terminated or discharged, without the prior written consent of the Lease Indenture Trustee and the Pass Through Trustee; provided, however, that an OP Member may assign, convey or transfer all or any part of its interest in the Member Interest without such consent to (x) an Affiliate of the OP Member, if the OP Guaranty shall remain outstanding and in full force and effect and the conditions set forth in clauses (ii) and (iii) below shall have been satisfied or (y) an Affiliate of the OP Member or any other Person that guarantees all of the Owner Participant's obligations under the Operative Documents pursuant to a guaranty substantially in the form of Exhibit U hereto (such Affiliate or such other Person, the "Member Transferee") and if, with ----------------- respect to clause (y), each of the following conditions shall have been satisfied: (i) the Member Transferee meets the following criteria: (1) the tangible net worth of the Member Transferee is at least equal to $75 million calculated in accordance with GAAP; and (2) unless waived by SEMA, and so long as no Significant Lease Default or Lease Event of Default shall have occurred and be continuing, such Member Transferee is not a Competitor of, or in material litigation with, SEMA or any Affiliate of SEMA; provided, that the condition set forth in clause (2) above shall not apply to Member Transferees that are Affiliates of the OP Member; (ii) the total number of Unrelated Members, after giving effect to such transactions shall not exceed three; and (iii) the Member Transferee agrees in the guaranty or in another written instrument reasonably acceptable to SEMA and, for so long as the Lien of the Lease Indenture has not been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustee to be bound by this Section 16.18. ------------- (b) The Pricing Assumptions shall not be changed as a result of any such transfer. (c) The OP Member shall give the Owner Lessor, the Owner Manager, the Lease Indenture Trustee, the Pass Through Trustee and SEMA 30 days prior written notice of such transfer, or 10 days in the case of a transfer to an Affiliate of the Owner Participant, specifying the name and address of any proposed Member Transferee and such additional information as shall be necessary to determine whether the proposed transfer satisfies the requirements of this Section 16.

Restrictions on Transfer of Member Interest. (a) No OP Member shall, The Owner Participant covenants and agrees that it shall not during the Facility Lease Term, directly or indirectly, assign, convey or transfer any of its right, title or interest in the Member Interest or cause the Owner Participant to issue additional membership interests without the prior written consent of SEMA the Company and, so long as the Lien of the Lease Indenture has not been terminated or discharged, without the prior written consent of the Lease Indenture Trustee and the Pass Through Trustee; provided, however, that an OP Member the Owner Participant may assign, convey or transfer all or any part of its interest in the Member Interest without such consent to a Person (xthe "OP Transferee") an Affiliate that shall assume the duties and obligations of the OP Member, if the OP Guaranty shall remain outstanding and in full force and effect and the conditions set forth in clauses (ii) and (iii) below shall have been satisfied or (y) an Affiliate of the OP Member or any other Person that guarantees all of ------------- the Owner Participant's obligations Participant under the Operative Documents pursuant to a guaranty an Assignment and Assumption Agreement substantially in the form of Exhibit U hereto (such Affiliate G hereto, or such other Personotherwise in form and substance satisfactory to the Company and, so long as the Lien of the Lease Indenture shall not have been discharged, the "Member Transferee") and ifLease Indenture Trustee, with ----------------- respect to clause (y), each of if the following conditions shall have been satisfied: (i) The Company and the Member Transferee meets Lessee Guarantor, and, so long as the following criteria: Lien of the Lease Indenture shall not have been discharged, the Lease Indenture Trustee, shall have received an opinion of counsel, which opinion is reasonably satisfactory to the Company and the Lessee Guarantor, and, so long as the Lease Debt is outstanding, the Lease Indenture Trustee, to the effect that all material regulatory approvals required in connection with such transfer or necessary to assume the Owner Participant's obligations under the Operative Documents shall have been obtained, and the Pass Through Trustees shall have received a copy of, and be permitted to rely upon, such opinion; (1ii) the OP Transferee shall be a "United States person" within the meaning of Section 7701(a)(30) of the Code; (iii) the OP Transferee shall be (A) a 100% related Affiliate (provided that such Affiliate is neither an entity subject to regulation as an electric utility nor a Competitor in itself with the Company) of the Equity Investor Parent that does not otherwise qualify under clause (B) below, provided that all of the payment and performance obligations of the OP Transferee under the Operative Documents shall be guaranteed by the Equity Investor (pursuant to an OP Guaranty substantially in the form of Exhibit H-1 hereto or otherwise in form and substance satisfactory to the Company and, so long as the Lien of the Lease Indenture shall not have been discharged, the Lease Indenture Trustee), or (B) a Person that has, or the payment and performance obligations of which with respect to the interest being transferred under the Operative Documents are guaranteed (pursuant to an OP Guaranty substantially in the form of Exhibit H-1 hereto or otherwise in form and substance satisfactory to the Company and, so long as the Lien of the Lease Indenture, shall not have been discharged, the Lease Indenture Trustee) by an OP Guarantor that has, a tangible net worth of the Member Transferee is at least equal to $75 million calculated in accordance with GAAP; and and (2iv) unless waived by SEMA(A) the OP Transferee is a 100% related Affiliate (provided that such Affiliate is neither an entity subject to regulation as an electric utility nor a Competitor in itself with the Company) of the Equity Investor Parent and is not itself (without regard to any Affiliate of the OP Transferee) a Competitor of the Company or an Affiliate thereof, and so long as no Significant or (B) the Company in its sole discretion has consented to such transfer, or (C) a Lease Bankruptcy or Payment Default or Lease Event of Default shall have occurred and be continuing, such Member the OP Transferee is shall not be a Competitor ofof the Company or any Affiliate thereof, or and neither the OP Transferee nor any Affiliate of the OP Transferee shall be in material litigation with, SEMA with the Company or any Affiliate thereof. Notwithstanding the foregoing, no partial assignment of SEMAany Owner Participant's interest shall be permitted under this Section 7.1 unless (x) the OP Transferee is acquiring at least one third of the total Member Interest and (y) after giving effect to said partial assignment, there shall not be more than two Owner Participants. (b) For purposes of the preceding Section 7.1(a) and Section 5.5, a "Competitor" of the Company or any Affiliate thereof shall be an entity, or an ----------- Affiliate thereof, that is significantly involved as a generator, seller, trader, wholesale purchaser or marketer of capacity or energy in the electric market in the United States or Canada, provided that, the foregoing restriction shall not apply in the case of an OP Transferee that is an Affiliate of such a generator, seller, trader, wholesale purchaser or marketer so long as (i) such OP Transferee is an entity involved in making passive investments (such as the Owner Participant's investment in the Transaction), and not otherwise engaged as a generator, seller, trader, wholesale purchaser or marketer of capacity or energy in the electric market, (ii) such OP Transferee has in place procedures which shall be reasonably acceptable to the Company to prevent such Affiliate that is a generator, seller, trader, wholesale purchaser or marketer of capacity or energy from acquiring confidential information relating to such passive investments and agrees in writing with the Company to maintain such procedures, and (iii) neither such OP Transferee nor any Affiliate thereof is an entity that is (A) actively involved in the selling, trading or generation of electricity in the Ontario, Quebec, NEPOOL, NYPOOL, or PJM power markets or any successor thereto, or (B) on the List of Competitors, which may, from time to time, but no more often than once per year, be modified by the Company, and shall contain a list of entities that the Company reasonably believes in its good faith judgment are Competitors of the Company or an Affiliate thereof; provided that such List of Competitors shall not contain more than 6 entities at any one time. Notwithstanding the foregoing, the restrictions set forth in clauses (a)(i), (a)(iii) and (a)(iv) shall not inure to the benefit of the Company if such transfer is during the continuance of a Lease Event of Default. (c) Notwithstanding anything to the contrary contained herein, any transfer by the Owner Participant of any portion of the Member Interest shall include a transfer of an interest in any direct or indirect parent of the Owner Participant up to but excluding the Equity Investor; provided, that that, as long as the condition OP Guaranty remains in full force and effect, the transfer restrictions set forth in clause (2a)(i), (a)(iii) above shall and (a)(iv) will not apply to Member Transferees any transfers of an interest in such direct or indirect parent of the Owner Participant to other entities that are Affiliates at all times 100% related to the Equity Investor Parent. (d) So long as the Lease Debt is outstanding, it shall be a condition precedent to the effectiveness of a transfer of (i) the OP Member; Member Interest or (ii) the total number equity interest in the Owner Participant, that S&P shall have received an opinion of Unrelated Memberscounsel substantially to the effect of the nonconsolidation opinion delivered on the Closing Date or in such other form as may be acceptable to S&P, or if as a consequence of a change in bankruptcy law such opinion cannot be given: (1) in connection with the events described in clauses (i) and (ii) above, a legal opinion to the effect that the risk of bankruptcy consolidation of the Owner Participant or the OP Transferee of the equity interest in the Owner Participant in such transfer with the Owner Lessor immediately after giving effect to the transfer of such transactions shall equity interest is not exceed threematerially greater than the risk of bankruptcy consolidation of the Owner Participant and/or the transferor with the Owner Lessor, immediately prior to giving effect to such transfer; and (iii2) in connection with an event described in clause (i) above, an Officer's Certificate of the Member OP Transferee agrees certifying that the organizational documents of the Owner Lessor contain, and will continue to contain after the transfer, provisions substantially equivalent to those contained in the guaranty organizational documents of the Owner Lessor on the Closing Date with respect to the following provisions: separateness, independent managers, no bankruptcy petition, no dissolution and amendment of such organizational documents or in another written instrument reasonably such other provisions as may be acceptable to SEMA and, S&P. (e) The Company shall not be responsible for so long as the Lien any Taxes arising out of the Lease Indenture has not been terminated or discharged, the Lease Indenture Trustee caused by any transfer pursuant to this Section 7.1 and the Pass Through Trustee to be bound by this Section 16.18. ------------- (b) The Pricing Assumptions shall not be changed as a result of any such transfer. (cf) The OP Member Owner Participant shall give the Owner Lessor, the Owner Lessor Manager, the Lease Indenture Trustee, and the Pass Through Trustee and SEMA Company 30 days days' prior written notice of such transferany transfer pursuant to this Section 7.1, or 10 days days' in the case of a transfer to an Affiliate of the Owner Participant, specifying Equity Investor. Such written notice shall be in the form of a certificate and stating the name and address of any proposed Member OP Transferee and such additional information as shall be necessary to determine whether that the proposed transfer satisfies the requirements of this Section 167. 1. If requested by the Owner Participant or the Lease Indenture Trustee, the Company will acknowledge qualifying transfers. (g) All reasonable, documented out-of-pocket costs, fees and expenses of the Lease Indenture Trustee, Pass Through Trustees, the Company and the Lessee Guarantor, including reasonable attorneys' fees and expenses in connection with any such transfer or proposed transfer, including any of the foregoing relating to any amendments to the Operative Documents required in connection therewith, shall be paid by the Owner Participant, without any right of indemnification from the Company or any other Person; provided, however, that the Owner Participant shall have no obligation to pay such costs, fees or expenses incurred by the Company or the Lessee Guarantor as a result of any transfer while a Significant Lease Default or Lease Event of Default is continuing, in which case the Company or the Lessee Guarantor shall be obligated to pay such costs. (h) Upon any such transfer in compliance with this Section 7.1, (i) such OP Transferee shall to the extent of the Member Interest transferred (x) be deemed the "Owner Participant" for all purposes, and (y) enjoy the rights and privileges and perform the obligations of the Owner Participant hereunder and under the Assignment and Assumption Agreement, the OP Guaranty and each other Operative Document to which such Owner Participant is a party, and each reference in this Agreement, the Assignment and Assumption Agreement, the OP Guaranty and each other Operative Document to the "Owner Participant" shall thereafter be deemed to include such OP Transferee to the extent of the Member Interest transferred, for all purposes and (ii) the transferring Owner Participant and the OP Guarantor, if any, of such transferring Owner Participant's obligations shall be released from all obligations to the extent of the Member Interest transferred hereunder and under each other Operative Document to which such transferring Owner Participant or its OP Guarantor is a party or by which such transferring Owner Participant and its OP Guarantor is bound to the extent such obligations are expressly assumed by the OP Transferee; provided, however, that in no event shall any such transfer waive or release the transferring Owner Participant or its OP Guarantor from any liability existing immediately prior to or occurring simultaneously with such transfer.

Restrictions on Transfer of Member Interest. (a) No OP Member shall, The Owner Participant covenants and agrees that it shall not during the Facility Lease Term, Term assign, convey or transfer any of its right, title or interest in the Member Interest or cause the Owner Participant to issue additional membership interests without the prior written consent of SEMA the Facility Lessee and, so long as the Lien of the Lease Indenture has not been terminated or discharged, without the prior written consent of the Lease Indenture Trustee and the Pass Through Trustee; provided, however, that an OP Member the Owner Participant may assign, convey or transfer all or any part of its interest in the Member Interest without such consent to a Person (xthe "Transferee") an Affiliate of which shall assume the OP Member, if the OP Guaranty shall remain outstanding duties and in full force and effect and the conditions set forth in clauses (ii) and (iii) below shall have been satisfied or (y) an Affiliate of the OP Member or any other Person that guarantees all obligations of the Owner Participant's obligations Participant under the Operative Documents pursuant to a guaranty substantially in the form of Exhibit U hereto (such Affiliate or such other Personan Conemaugh Participation Agreement 46 52 Assignment and Assumption Agreement, the "Member Transferee") and if, with ----------------- respect to clause (y), if each of the following conditions shall have been satisfied: (i) the Member Transferee meets the following criteria: (1) the tangible net worth of the Member Transferee is at least equal to $75 million calculated in accordance with GAAP; and (2) unless waived by SEMAFacility Lessee, and so long as no Significant Lease Default or Lease Event of Default shall have occurred and be continuing, such Member Transferee is not a Competitor of, or in material litigation with, SEMA or any Affiliate of SEMA; provided, that the condition set forth in clause (2) above shall not apply to Member Transferees that are Affiliates of the OP Member; (ii) the total number of Unrelated Members, after giving effect to such transactions shall not exceed three; and (iii) the Member Transferee agrees in the guaranty or in another written instrument reasonably acceptable to SEMA and, for so long as the Lien of the Lease Indenture has not been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustee Trustee, shall have received an opinion of counsel, which opinion and counsel are reasonably satisfactory to the Facility Lessee, to the effect that all material regulatory approvals required in connection with such transfer or necessary to assume the Owner Participant's obligations under the Operative Documents shall have been obtained; (ii) the Transferee shall be a "United States person" within the meaning of Section 7701(a)(30) of the Code; (iii) the Transferee shall be a Person which has, or the payment and performance obligations under the Operative Documents of which are guaranteed (pursuant to an OP Guarantee or in another form reasonably satisfactory to the Facility Lessee) by a Person which has a tangible net worth of at least equal to $75 million calculated in accordance with GAAP; and (iv) unless waived by the Facility Lessee, and so long as no Significant Lease Default or Lease Event of Default shall have occurred and be continuing, neither the Transferee nor the OP Guarantor is a Competitor of, or in material litigation with, the Facility Lessee or any Affiliate thereof; (v) the transferring Owner Participant shall pay, without any right of indemnification from the Facility Lessee or any other Person, all reasonable documented out-of-pocket costs, fees and expenses incurred in connection with any such transfer by (x) the other Transaction Parties, except the Facility Lessee and its Affiliates and (y) by the Facility Lessee and its Affiliates so long as no Significant Lease Default or Lease Event of Default shall have occurred and be continuing; (vi) such transfer shall not cause there to be bound by more than three Owner Participants (as defined in this Agreement or in the Operative Documents in any Related Facility Lease) that are not Related Parties with such other Owner Participants; and (vii) the Owner Participant has not previously assumed the Notes pursuant to Section 16.18. -------------8.7; (b) The Pricing Assumptions For purposes of the preceding clause (a), a "Competitor" of the Facility Lessee shall be an entity which, or an Affiliate of which, is significantly involved as a seller or trader of capacity or energy in the electric market, provided that, the foregoing restriction shall not be changed as a result of any such transfer. (c) The OP Member shall give the Owner Lessor, the Owner Manager, the Lease Indenture Trustee, the Pass Through Trustee and SEMA 30 days prior written notice of such transfer, or 10 days apply in the case of a transfer to Transferee that is an Affiliate of such a seller or trader so long as (i) such Transferee is an entity regularly involved in making passive investments such as the Owner Participant's contemplated investment in the Transaction, specifying the name and address of any proposed Member (ii) such Transferee and such additional information as has in place procedures which shall be necessary reasonably acceptable to determine whether the proposed Facility Lessee to prevent such Affiliate that is a seller or trader of capacity or energy from acquiring confidential information relating to such passive investments and agrees in writing with the Facility Lessee to maintain such procedures, and (iii) neither such Transferee nor any Affiliate thereof is an entity that is (A) actively involved in the selling, trading or generation of electricity in the PJM, ECAR NYPP or VACAR or any successor thereto, or (B) on the List of Competitors, which may, from time to time, but no more often than once per year, be modified by the Facility Lessee, and shall contain a list of entities which the Facility Lessee reasonably believes in its good faith judgment are Competitors of the Facility Lessee; provided that such List of Competitors shall not contain more than 6 entities at any one time. Notwithstanding the foregoing, the restrictions set forth in clauses (i), (iii), (iv) and (v) of Section 8.1(a) above shall not inure to the benefit of the Facility Lessee if such transfer satisfies is in connection with the requirements exercise of this Section 16remedies during a Lease Event of Default.

Restrictions on Transfer of Member Interest. (a) No OP Member shall, The Owner Participant covenants and agrees that it shall not during the Construction Period or the Facility Lease Term, directly or indirectly, assign, convey or transfer any of its right, title or interest in the Member Interest or cause the Owner Participant to issue additional membership interests without the prior written consent of SEMA and, so long as the Lien of the Lease Indenture has not been terminated or discharged, without the prior written consent of the Lease Company (so long as no Company Event of Default has occurred and is continuing) and, so long as any Lessor Notes remain outstanding, the Indenture Trustee and (acting on the Pass Through Trusteeinstruction of the Required Noteholders); provided, however, that an OP Member the Owner Participant may assign, convey or transfer all or any part portion of its interest in the Member Interest without such consent to a Person (xthe “Transferee”) an Affiliate of which shall assume the OP Member, if the OP Guaranty shall remain outstanding duties and in full force and effect and the conditions set forth in clauses (ii) and (iii) below shall have been satisfied or (y) an Affiliate of the OP Member or any other Person that guarantees all obligations of the Owner Participant's obligations Participant under the Operative Documents (and the guarantor or guarantors, as the case may be, of the Transferee shall assume the duties and obligations of the OP Guarantor under the Operative Documents), with respect to the interest being transferred pursuant to a guaranty Transfer Agreement substantially in the form of Exhibit U P (and such guarantor or guarantors, as the case may be, shall execute and deliver to the other parties hereto (such Affiliate or such other Person, a guaranty in the "Member Transferee") and if, with ----------------- respect to clause (yform of Exhibit J), if each of the following further conditions shall have been satisfied: (i) the Member Company (so long as no Company Event of Default has occurred and is continuing), the Owner Lessor and, so long as any Lessor Notes remain outstanding, the Indenture Trustee, for the benefit of the Noteholders, shall have received an opinion of counsel of the Transferee meets and the following criteria: transferring Owner Participant, which opinion shall be reasonably satisfactory to each of the Company, the Owner Lessor and the Indenture Trustee to the effect that (1A) such Transfer Agreement (and any guaranty of the Transferee’s obligations) is a legal, valid and binding obligation of, and is enforceable against, each party thereto (subject to customary qualifications), (B) all material Governmental Approvals required in connection with such transfer or necessary to assume the Owner Participant’s obligations (and issue any guaranty of the Transferee’s guarantor or guarantors, as the case may be) under the Operative Documents shall have been obtained, (C) the tangible net worth existence, power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee (and any guarantor of such Transferee’s obligations under the Operative Documents) and (D) the proposed transfer of the Member Interest will not require registration pursuant to the Securities Act; (ii) the Transferee is (and any guarantor of the Transferee’s obligations under the Operative Documents) shall be a “United States person” within the meaning of Section 7701(a)(30) of the Code; (iii) the Transferee or any guarantor of such Transferee shall have a Consolidated Tangible Net Worth of at least equal to $75 million million, calculated in accordance with GAAPGAAP and, if such transfer occurs during the Commitment Period, the Reference Debt of any guarantor of such Transferee shall be rated at least BBB+ by S&P and Baal by Xxxxx’x; (iv) neither the Transferee nor any guarantor (nor any Affiliate of any such Person) shall be (A) a Competitor or (B) in material litigation with the Company or an Affiliate thereof unless, in either case, the Company shall have, in its sole discretion, consented to such transfer; (v) after such transfer, there shall be no more than four Owner Participants; and (vi) the transferring Owner Participant shall pay, without any right of indemnification from the Company or any other Person, on an After Tax-Basis, all reasonable documented out-of-pocket costs, fees and expenses (including reasonable attorney’s fees and expenses) incurred in connection with any such transfer or proposed transfer, including any of foregoing relating to any amendments to the Operative Documents required in connection therewith, by (A) the other parties hereto, except the Company and (2B) unless waived by SEMAthe Company, and so long as no Significant Lease Company Default or Lease Company Event of Default shall have has occurred and be continuingis continuing at the time of such transfer. (b) For purposes of determining whether a Transferee, any guarantor of such Member Transferee is not a Competitor of, or in material litigation with, SEMA or any Affiliate of SEMAany such Person is a “Competitor” of the Company or any Affiliate thereof, the Company shall, on the Construction Closing Date, provide a list of entities, each of which, or an Affiliate of which, shall be significantly involved as a generator, seller, trader, wholesale purchaser or marketer of capacity or energy in the WECC power market or any successor thereto as determined in good faith by the Company; provided, that the restriction set forth in paragraph (a)(iv)(A) above shall not apply in the case of a Transferee that is an Affiliate of such a generator, seller, trader, wholesale purchaser or marketer so long as (i) such Transferee is an entity involved in making passive investments (such as the Owner Participant’s investment in the Overall Transaction) and not otherwise engaged as a generator, seller, trader, wholesale purchaser or marketer of capacity or energy in the electric market, (ii) such Transferee has in place procedures that shall be reasonably acceptable to the Company to prevent such Affiliate that is a generator, seller, trader, wholesale purchaser or marketer of capacity or energy from acquiring confidential information relating to such passive investments and agrees in writing with the Company to maintain such procedures and (iii) neither such Transferee nor any Affiliate thereof is an entity that is actively involved in the selling, trading or generation of electricity in the WECC power market or any successor thereto and derives a material percentage of its revenues from participation in such power market. After the Construction Closing Date, the Company may, with the Owner Participant’s written consent, which consent shall not be unreasonably withheld, modify or supplement the initial List of Competitors from time to time, but no more often than once per year based on the standards used in preparing the initial List of Competitors and, in addition, after notice of any proposed transfer by the Owner Participant pursuant to this Section 9.1. Notwithstanding the foregoing, the restrictions set forth in clauses (a)(i), (a)(iii), (a)(iv) and (a)(v) shall not inure to the benefit of the Company if such transfer is in connection with the exercise of remedies during the continuance of a Company Event of Default. (c) Notwithstanding anything to the contrary contained herein, upon the occurrence of a Regulatory Event of Loss or an event described in clause (i) of the definition of “Deemed Loss” set forth in Appendix A, the Owner Participant shall have satisfied the transfer requirements of this Section 9.1 in the event the Transferee satisfies the conditions set forth in clauses (a)(ii) and (a)(iii), and the Owner Participant and the Transferee, as the case may be, shall satisfy each other condition set forth in this Section 9.1 as soon as practicable, but in any event within 15 days, following such assignment, conveyance or transfer; provided, that solely with respect to a Regulatory Event of Loss or an event described in clause (i) of the definition of “Deemed Loss” set forth in Appendix A, the condition set forth in clause (2a)(iv) above shall not inure to the benefit of the Company and shall be deemed waived by the Company. (d) Notwithstanding anything to the contrary contained herein, any transfer of any direct or indirect ownership interest in the Owner Participant (including any transfer of the OP Interest), up to but excluding the OP Guarantor, shall comply with the transfer restrictions set forth in Section 9.1 (a); provided, that, as long as the OP Guaranty remains in full force and effect, the transfer restrictions set forth in clause (a)(iii) will not apply to Member Transferees any transfers of an interest in such direct or indirect parent of the Owner Participant to other entities that are Affiliates of at all times wholly-owned, directly or indirectly, by the OP Member;Guarantor; provided, further, that, in any event, any such entity shall represent and covenant that it is not and will not be funding its equity amounts, and is not and will not be performing its obligations under the Operative Documents with Plan Assets. (e) So long as any Lessor Notes remain outstanding, it shall be a condition precedent to the effectiveness of a transfer of (i) the Member Interest or (ii) the total number OP Interest, that the Rating Agencies shall have received an opinion of Unrelated Memberscounsel substantially to the effect of the nonconsolidation opinion delivered on the Construction Closing Date or in such other form as may be acceptable to the Rating Agencies or, if as a consequence of a change in bankruptcy law, such opinion cannot be given: (1) in connection with an event described in clause (i) above, a legal opinion to the effect that the risk of bankruptcy consolidation of the Transferee with the Transferee’s parent immediately after giving effect to the transfer of such transactions shall equity interest is not exceed threematerially greater than the risk of bankruptcy consolidation of the transferor with such transferor’s parent, immediately prior to giving effect to such transfer or (2) in connection with an event described in clause (ii) above, a legal opinion to the effect that the risk of bankruptcy consolidation of the Owner Participant with the transferee in such transfer after giving effect to the transfer of such equity interest is not materially greater than the risk of bankruptcy consolidation of the Owner Participant with the transferor, immediately prior to giving effect to such transfer; and (iiiB) in connection with an event described in clause (i) above, an Officer’s Certificate of the Member Transferee agrees certifying that the Constitutive Documents of the Transferee contain, and will continue to contain after the transfer, provisions substantially equivalent to those contained in the guaranty Constitutive Documents of the Owner Participant on the Construction Closing Date with respect to the following provisions: separateness, independent managers, no bankruptcy petition, no dissolution and amendment of such organizational documents or such other provisions as may be acceptable to the Rating Agencies. (f) Except as provided in Section 12.2 or in another written instrument reasonably acceptable to SEMA and, the Tax Indemnity Agreement and except for so long as any transfer made in connection with the Lien exercise of remedies during the Lease Indenture has not been terminated or dischargedcontinuance of a Company Event of Default, the Lease Indenture Trustee and the Pass Through Trustee to be bound by this Section 16.18. ------------- (b) The Pricing Assumptions Company shall not be changed as a result of responsible for any such transferadverse Tax consequence to the Owner Lessor or the Owner Participant resulting from any transfer pursuant to this Section 9.1. (cg) The OP Member Owner Participant shall give the Owner Lessor, the Owner Manager, Indenture Trustee (so long as any Lessor Notes remain outstanding) and the Lease Indenture Trustee, the Pass Through Trustee and SEMA 30 Company fifteen (15) days prior written notice of such transfernotice, or 10 days in the case form of a an Officer’s Certificate, of any transfer pursuant to an Affiliate of the Owner Participantthis Section 9.1, specifying the name and address of any proposed Member Transferee and such additional information as shall be necessary to determine whether the proposed transfer satisfies the requirements of this Section 169.1. (h) Upon any transfer that is made in compliance with this Section 9.1, (i) the Transferee shall (x) be deemed the “Owner Participant” for all purposes and (y) enjoy the rights and privileges, and perform the obligations, of the Owner Participant hereunder and under the Transfer Agreement and each other Operative Document to which the transferor Owner Participant is a party and each reference in this Agreement, the Transfer Agreement and each other Operative Document to the “Owner Participant” shall thereafter be deemed to include such Transferee for all purposes and (ii) the transferor Owner Participant and any guarantor of such transferor Owner Participant’s obligations shall be released from all obligations hereunder and under each other Operative Document to which such transferor or guarantor is a party or by which such transferor Owner Participant or guarantor is bound to the extent such obligations are expressly assumed by a Transferee; provided, however, that in no event shall any such transfer waive or release the transferor or any guarantor of the transferor from any liability existing immediately prior to or occurring prior to or simultaneously with such transfer.

Restrictions on Transfer of Member Interest. XXXXXXXXX PARTICIPATION AGREEMENT (L1) -------------------------------------- (a) No OP Member shall, during the Facility Lease Term, assign, convey or transfer any of its right, title or interest in the Member Interest or cause the Owner Participant to issue additional membership interests without the prior written consent of SEMA and, so long as the Lien of the Lease Indenture has not been terminated or discharged, without the prior written consent of the Lease Indenture Trustee and the Pass Through Trustee; provided, however, that an OP Member may assign, convey or transfer all or any part of its interest in the Member Interest without such consent to (x) an Affiliate of the OP Member, if the OP Guaranty shall remain outstanding and in full force and effect and the conditions set forth in clauses (ii) and (iii) below shall have been satisfied or (y) an Affiliate of the OP Member or any other Person that guarantees all of the Owner Participant's obligations under the Operative Documents pursuant to a guaranty substantially in the form of Exhibit U hereto (such Affiliate or such other Person, the "Member Transferee") and if, with ----------------- respect to clause (y), each ----------------- of the following conditions shall have been satisfied: (i) the Member Transferee meets the following criteria: (1) the tangible net worth of the Member Transferee is at least equal to $75 million calculated in accordance with GAAP; and (2) unless waived by SEMA, and so long as no Significant Lease Default or Lease Event of Default shall have occurred and be continuing, such Member Transferee is not a Competitor of, or in material litigation with, SEMA or any Affiliate of SEMA; provided, that the condition set forth in clause (2) above shall not apply to Member Transferees that are Affiliates of the OP Member; (ii) the total number of Unrelated Members, after giving effect to such transactions shall not exceed three; and (iii) the Member Transferee agrees in the guaranty or in another written instrument reasonably acceptable to SEMA and, for so long as the Lien of the Lease Indenture has not been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustee to be bound by this Section 16.18. ------------- (b) The Pricing Assumptions shall not be changed as a result of any such transfer. (c) The OP Member shall give the Owner Lessor, the Owner Manager, the Lease Indenture Trustee, the Pass Through Trustee and SEMA 30 days prior written notice of such transfer, or 10 days in the case of a transfer to an Affiliate of the Owner Participant, specifying the name and address of any proposed Member Transferee and such additional information as shall be necessary to determine whether the proposed transfer satisfies the requirements of this Section 16.